R. v. McKean, 2013 ONCJ 728

ONTARIO COURT OF JUSTICE DATE: 2013·12·27 COURT FILE No.: Halton 2149/13 Citation: R. v. McKean , 2013 ONCJ 728 BETWEEN: HER MAJESTY THE QUEEN — AND — ROBERT KEITH McKEAN Before Justice F.L. FORSYTH Heard on October 21, 2013 and December 18, 2013 Reasons for Sentence released on December 27, 2013 Harutyun Apel ........................................................................................ Counsel for the Crown Paul Burstein ........................................................ Counsel for the defendant Robert McKean FORSYTH J.: [ 1 ] Mr.

McKean entered guilty pleas on October 21, 2013 to one count of dangerous driving and one count of impaired operation of his motor vehicle, contrary to s. 249(1) (

a) and 253(1) (

a) of the Criminal Code respectively. The Crown had proceeded summarily. Mr. McKean retained Paul Burstein and the Crown was represented by Harutyun Apel, Esq. [ 2 ] The facts relied upon in support of the pleas can be summarized as follows. On Saturday June 29, 2013 at 10:43 p.m. Katarzyna Nasarzewski was driving a motor vehicle on Highway 407 westbound at Bronte Road. They were in lane two of three lanes when suddenly at a distance of about 150 metres ahead she saw a set of headlights approaching her in lane number two at a high speed.

She screamed and swerved to the right to avoid a head-on collision with the wrong way vehicle which was travelling east in the westbound lanes of Highway 407. She stopped on the right shoulder, shivering and shaken and called 911. [ 3 ] Lorenzo Di Piero was also driving on Highway 407 westbound at Bronte Road in lane one of three, and coming up to a slight left bend on the highway he observed a set of headlights approaching him.

Initially he thought the vehicle was eastbound, but as it came closer and at a distance of about 150 metres he realized that the vehicle was driving the wrong way on the highway and was travelling east in the westbound lanes and coming at him head on. He was able to swerve immediately to the right and avoided the collision. [ 4 ] Tracey Thomas was driving a motor vehicle westbound on Highway 407 west of Trafalgar Road in lane two of three lanes.

There were two other vehicles in front of her in lane two and suddenly she saw those two vehicles split off with one going to the left and the other to the right and then she was able to observe a set of headlights coming straight at her in lane two in the vacated space. Shocked, she swerved suddenly to the right shoulder and went into the right ditch and remained there for a couple of minutes before she called 911 and was able to extricate her car from the ditch.

She was uninjured. [ 5 ] Michael Migliore stated that he and his girlfriend were heading to Niagara Falls on Highway 407 westbound Trafalgar Road in lane one of three when suddenly he observed a vehicle coming head on towards him in lane one and he was able to swerve to the right and stop on the right-hand shoulder calling 911.

[ 6 ] Victor De Lanessan stated that on June 29, 2013 at about 10:45 p.m. he was travelling westbound on Highway 407 just west of Trafalgar Road in lane two of three when he suddenly observed a big vehicle travelling towards him in the wrong direction, partially in lane one and also partially on the left shoulder. He was able to serve to the right to avoid a head-on collision with that vehicle. [ 7 ] At approximately 10:44 p.m. an OPP office responded to the call from Britannia Road in the City of Oakville. P.C.

Katoch caught sight of a motor vehicle right in front of him which was in danger of being struck by the accused’s vehicle. The officer was able to direct that vehicle over to the right-hand lane just in time as the accused’s vehicle passed by P.C. Katoch on the left shoulder. The officer made a U-turn and pursued the vehicle and caught up to it. He activated his emergency lights and, after about 500 metres of travelling alongside the vehicle where it was on the shoulder, it slowed down enough that he was able to crowd the vehicle off, blocking it from any further progress and stopping it. [ 8 ] P.C.

Katoch detected a strong odour of an alcoholic beverage from the accused’s breath and he was very unsteady on his feet and had red glossy eyes. In his vehicle were his own three small children in the back seat of what was a pickup truck. The driver was identified as the accused, Robert McKean, with a date of birth of September 12, 1974. [ 9 ] After the appropriate demand for breath samples was read to the accused and he was given his rights to counsel, he was taken to the OPP Port Credit detachment where he provided two samples of his breath.

At 12:04 a.m. the first test revealed a reading of 225 milligrams of alcohol in 100 millilitres of blood and a second test at 12:41 a.m., a reading of 209 milligrams of alcohol in 100 millilitres of blood. [ 10 ] The Court was informed that Mr. McKean has no previous criminal record. [ 11 ] Both the Crown and the defence were content to proceed without a pre-sentence report despite the fact that the Crown is seeking a custodial component to the sentence that the Court imposes. This is due to a large extent because of the extensive material which Mr.

Burstein has provided in a sentencing brief which was entered as Exhibit Number 1 in this proceeding. [ 12 ] Although I am aware of the Ontario Court of Appeal’s caution to sentencing judges that a pre-sentence report should normally be ordered when the Crown seeks a jail sentence on a first offender, I am also satisfied that the defence sentencing brief has sufficiently canvassed all of the essential relevant factors in the offender’s life, both positive and also negative, to enable me to dispense with a pre-sentence report. [ 13 ] At the time of these offences the offender was the Fire Chief of the Clearview Township Fire Department in Stayner, Ontario.

He had been employed as Deputy Chief since 2008 until 2010 when he was appointed Chief. The letters of commendation filed by Mr. Burstein speak of him in the most glowing of terms as both a professional and also as a community member. He was decorated for bravery by the Governor General in 2004 for his role in the 2002 rescue of a teenager who had been trapped beneath a collapsed basement.

Sadly, as a result of these offences, he was terminated from his position as Fire Chief on July 17, 2013. [ 14 ] As is so often the case this thoroughly professional and brave man had a dark side to his otherwise exemplary life, even while he was able to maintain his high level of community respect. He developed a problem with anxiety and became an alcoholic. This affected his marriage and he has now been separated from his wife and children for about two and a half years.

His wife supplied a letter which is actually a form of victim impact statement because their three children were in the offender’s car when he committed these offences. In that letter, Cecelia McKean states that she has been separated from Mr. McKean for two years and she is the mother, of course, of their three children, aged 6, 6 and 2. She beseeches the Court not to put Mr. McKean in jail because his income is absolutely essential to help support his children. Of course she would not realize the availability of intermittent service of jail time which would not necessarily disrupt his employment.

However she did make that submission. More importantly, she pointed out that she knows that Mr. McKean has been taking counselling and attending AA and seeking help for his depression and “critical incident stress issues” as well. [ 15 ] Relevant to that comment, Mr. Burstein supplied a letter from Dr. Mike Lewin dated August 25, 2013 which informs the Court that Mr. McKean has been a patient of Dr. Lewin for seven years. He states that the offender has had problems with anxiety and alcohol for some time and first came to his office to address these problems in November 2012.

He had followup counselling in January and March in 2013 and began taking anti-depressant medications in March. Since the June 29 offence date, the doctor states that Mr. McKean has made regular visits to his office and has also been seeing an independent counsellor on a regular basis and attending AA meetings five times a week. He also states that as far as he knows Mr. McKean has been abstinent from alcohol since June 29, 2013. Position of the Crown [ 16 ] The Crown seeks a sentence of 14 to 30 days jail and would not be opposed to intermittent service. Mr.

Apel submits that the principles of denunciation and general deterrence must be paramount in the Court’s analysis of a fit sentence in this case. He also submits that a s. 718.1 proportional analysis by the Court should leave the Court in a position of concluding that the degree of gravity of these facts is extremely high.

They attract the opposite aphorism of “but for the grace of.....” there could easily have been a death or serious bodily injury to other motorists or even to the offender or his children as a direct result of his extremely impaired condition when he was driving on the wrong side of a major multi-lane highway on June 29, 2013. [ 17 ] The Crown also seeks a two year driving prohibition in conjunction with a 12 month period of probation with a term requiring alcohol counselling for Mr. McKean and also a term requiring complete abstinence from the purchase, possession, consumption of alcohol.

Position of the Defence [ 18 ] Mr. Burstein referred the Court to the well-established common law principles which caution sentencing courts to avoid incarcerating first offenders unless the gravity of the underlying facts on a s. 718.1 analysis requires it. He also referred the Court to the

codification of those principles in s. 718.2(

d) and (e). He provided an extensive case law brief which contains the precedents upon which he relies for that submission. These principles are not disputed by the Crown and are extremely familiar to the Court. [ 19 ] With respect to mitigating factors relevant to both the commission of the offences and also to the offender himself as contemplated by s. 718.2, Mr. Burstein related that Mr. McKean had been diagnosed with and treated for kidney cancer four years before the events of June 29, 2013.

It had gone into remission, but additional medical tests in April and May of this year had indicated a possible return of the disease. [ 20 ] On the date of these offences he was awaiting the final results of those tests and, thus, he fell prey to the temptation to drink and to commiserate with a close friend, even though he knew that he had been battling alcoholism and depression for some time before that date. Mr.

Burstein simply submits that the offender has already paid dearly for this departure from his normally sound judgment and stellar professional character by the loss of his high profile and important community position as Fire Chief and his reputation within his community. [ 21 ] Mr. Burstein seeks a non-custodial sentence of fines of $2,000 and $1,500 consecutive respectively on each count. He suggests that perhaps the maximum number of hours of community service would also be appropriate and he is prepared to agree with the Crown’s request for two years probation for the purposes of monitoring both Mr.

McKean’s alcohol rehabilitative counselling and also his community service work. He asks the Court to consider a reduced driving prohibition from the position of two years sought by the Crown of 18 months. [ 22 ] Finally, in support of his recommended position, he refers the Court to a recent sentencing decision by Madam Justice Baldwin in a case which he submits is eerily similar in almost all factors to the McKean case. Ironically, I was the pre-trial judge on that case and Mr. Apel was also the Crown on both the judicial pre-trial and also on the resultant guilty plea and sentencing by Justice Baldwin.

The case is R. v. Forster and it was decided on October 8, 2013, unreported. [ 23 ] In the Forster decision, Madam Justice Baldwin was dealing with a lady who had driven westbound in the eastbound lanes of Highway 407 while heavily impaired by alcohol. As would be expected, drivers had to take evasive action to avoid colliding with her vehicle. At one point one police officer kept pace with her in the westbound lanes and tried to warn drivers across in the eastbound lanes by flashing his emergency lights.

Eventually an OPP officer arrived in the eastbound lanes and tried to force the accused off of the road by driving head on at him. However, the accused managed to drive around the cruiser and continued westbound in the eastbound lanes. The OPP officer then reversed his cruiser and drove alongside the accused to attempt to force him off onto the shoulder. The accused was travelling at a speed of approximately 50 to 60 kph.

The officer was unable to get his cruiser in front of the accused’s vehicle but eventually managed to pin his car against the centre concrete barrier median, bringing this horrific incident to a conclusion without any collisions. [ 24 ] Ms. Forster had no criminal record. She had sought remedial treatment for alcohol abuse. [ 25 ] The Crown sought a period of incarceration of 60 to 90 days jail, 18 months of probation with an alcohol treatment condition, and an 18 month driving prohibition. [ 26 ] In the final analysis, Madam Justice Baldwin sentenced Ms.

Forster to a fine of $2,000 on the impaired charge and $1,500 consecutive on the dangerous driving charge for a total of $3,500. She prohibited Ms. Forster from driving for a period of 18 months and also imposed a period of probation with an alcohol counselling condition. [ 27 ] When Mr. McKean addressed the Court in this case himself, I found that he demonstrated excellent insight into his own alcohol problem at this point in time and also an unmitigated acceptance of his own responsibility for this horrific event.

Conclusion [ 28 ] The governing principles in any sentencing for offences which involve the impairment of a motorist’s ability to operate a motor vehicle by alcohol and/or for the offence of dangerous driving, especially when it also contains the element of consumption and effects of alcohol, are denunciation and specific and general deterrence. Parliament has made that clear by the imposition of minimum fines and periods of driving prohibition for s. 253(

a) convictions, even for first offenders. The only issue in this sentencing is whether the underlying facts are so grave that there should be a custodial component in the sentence of Mr. McKean in order to address these principles and in accordance with the proportional analysis of s. 718.1 and 718.2 of the codified principles of sentencing. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including

their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 29 ] I find, after a careful analysis of all of these principles of sentencing, that the facts which constituted these offences of Mr. McKean are sufficiently grave under a s. 718.1 analysis in particular and the degree of responsibility of the offender for them is extremely high.

Therefore, I find no error in principle in the Crown’s submission that the Court must consider a custodial component for this sentence. [ 30 ] However, that judicial consideration must be inextricably integrated with Parliament’s instructions to sentencing courts in s. 718.2(

a) that sentences must be increased to account for aggravating factors, of which we have many in this case, but also must be reduced proportionally to account for any mitigating factors inherent to the offences or to the offender. [ 31 ] In addition, the Court must strive to render a sentence which is, as much as is realistically possible, consistent with the parity caution in s. 718.2(b). There is not a cornucopia of similar sentencing precedents available, as both Mr. Burstein and Mr. Apel agree.

However, right here in Halton I have the benefit of the decision of my colleague, Madam Justice Baldwin, in Forster, supra , which I have summarized in this judgment. I find both the antecedents of Ms. Forster and Mr. McKean and the factual underpinnings of each case to be so similar to each other as to be as close as I have seen in a long time to being on “all fours” as we say in this profession. [ 32 ] Therefore, in conclusion, for reasons of parity within the same jurisdiction, as well as having taken into account the mitigating factors relating to Mr.

McKean’s decision to drink to excess on this occasion, and the remedial steps which he has undertaken since the event, I have concluded that all of the important principles of sentencing that should inform offences of this nature can be adequately addressed by a non-custodial sentence. [ 33 ] I therefore sentence Mr. McKean to a fine of $2,000 on the impaired operation charge and $1,500 consecutive on the dangerous driving charge. With the victim fine surcharges involved, the total amount is $4,025. [ 34 ] I prohibit Mr.

McKean from driving anywhere in Canada for a period of 18 months, which is the same period of time for which Madam Justice Baldwin prohibited Ms. Forster. [ 35 ] While the Crown sought a two year period of probation, in my view, 18 months is sufficient in Mr. McKean’s case to deal with the monitoring of his behaviour by alcohol abuse counselling with his probation officer while not being too prohibitive to his personal life.

Therefore, I place him on probation for a period of 18 months with the terms of counselling for alcohol abuse and abstention from the purchase, possession or consumption of alcohol. [ 36 ] In addition, after some reflection on Mr. Burstein’s offer of the maximum number of hours of community service work, I decided that 100 hours would be sufficient for that component in the sentencing. Mr.

McKean is actively trying to pursue alternative employment at the moment and I would not want to interfere with his ability to put as much time as necessary into that quest for the good of his family. [ 37 ] This then completes my written reasons for the oral sentencing which I imposed on December 18, 2013. I thank both counsel, Mr. Apel for the Crown, and Mr. Burstein for Mr. McKean, for their very thorough and sensitive presentation of this particularly difficult case. Released: December 27, 2013 Signed: “Justice F.L. FORSYTH”